State of New South Wales v Williamson (No. 2)

[2019] NSWSC 936

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

State of New South Wales v Williamson (No. 2) [2019] NSWSC 936

Hearing dates:

26 June 2019; 11 July 2019 & 22 July 2019

Date of orders:

25 July 2019

Decision date:

25 July 2019

Jurisdiction:

Common Law

Before:

Davies J

Decision:

1. I order pursuant to ss 7 and 8(1)(e) of the Court Suppression and Non-publication Orders Act 2010 (NSW) that there be no publication of the (a) present or future residence of the defendant, (b) the identity or the places of business of the defendant’s employer.

 

2. The non-publication order does not apply to any person with responsibility for the defendant under the Child Protection (Offenders Registration) Act 2000 (NSW).

 

3. The non-publication order is to remain in force for 12 months from the date hereof.

 

4. The non-publication order is to apply throughout the Commonwealth of Australia.

 5. The interim orders made by me on 26 June and extended on 2 July and 11 July 2019 are vacated.

Catchwords:

CIVIL PROCEDURE – application for a general non-publication order under s 8(1) Court Suppression and Non-publication Orders Act 2010 (NSW) – applicant convicted high risk sex offender – released into the community on parole 7 years ago – upon expiry of parole an extended supervision order was made for 5 years – subsequent application for a further ESO was made and dismissed – interim non-publication orders pending the determination of the present motion – whether general non-publication order was necessary to protect the safety of any person – no recent matters which might be thought to threaten the safety of the applicant – whether it was otherwise necessary in the public interest for general order to be made – whether unwanted media attention could impede the applicant’s ongoing rehabilitation and reintegration into the community – high threshold of “necessary” not met – orders would be of little utility given other related and publicly available judgments – whether a limited non-publication order should be made – where the publication of the defendant’s work and residence would significantly impair his rehabilitation – where a limited non-publication order would only marginally infringe upon any interest in open justice – limited non-publication order necessary in the public interest – limited order made for a period of 12 months

Legislation Cited:

Child Protection (Offenders Registration) Act 2000 (NSW)
Court Suppression and Non-publication Orders Act 2010 (NSW) ss 7, 8, 10
Crimes (High Risk Offenders) Act 2006 (NSW) s 3

Cases Cited:

Darren Brown (a pseudonym) v R (No 2) [2019] NSWCCA 69
Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125
Prothonotary of the Supreme Court of New South Wales v Dowling (No 6) [2018] NSWSC 1715
R v Qaumi (No 15) (Non-publication order) [2016] NSWSC 318
Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403
State of New South Wales v Burns [2014 NSWSC 1014
State of New South Wales v Delaporte [2014] NSWSC 1165
State of New South Wales v Williamson [2014] NSWSC 519
State of New South Wales v Williamson [2014] NSWSC 939
State of New South Wales v Wilmot (Supreme Court (NSW), 21 June 2019, unrep)
State of New South Wales v Williamson [2019] NSWSC 812
State of New South Wales v XY (Supreme Court (NSW), 17 June 2019, unrep)
State of NSW v Kay [2017] NSWSC 274
The State of NSW v Colin John Fisk [2009] NSWSC 778

Texts Cited:

Nil

Category:

Procedural and other rulings

Parties:

State of New South Wales (Plaintiff)
Terry John Williamson (Defendant)

Representation:

Counsel:
J Single & E Sullivan (Plaintiff)
J Stratton SC & T Hennessy (Defendant)

  Solicitors:
Crown Solicitors Office (Plaintiff)
Legal Aid NSW (Defendant)

File Number(s):

2019/166590

Publication restriction:

As per orders

Judgment

1. On 28 May 2019 the State of New South Wales filed a summons seeking an extended supervision order (ESO) for a period of three years under the provisions of the Crimes (High Risk Offenders) Act 2006 (NSW). I heard the application for an interim supervision order on 26 June 2019.

2. By a notice of motion filed 21 June 2019 and returnable for hearing on 26 June 2019 the defendant sought the following orders pursuant to the Court Suppression and Non-publication Orders Act 2010 (NSW):

1.   An order restricting the publication or other disclosure of information tending to reveal the identity of the defendant, to referring to him by a pseudonym.

2.   An order restricting the publication of any information about the defendant, his history and the current application.

3.   This order remains in force until the matter has been disposed of to finality or another order is made.

4.   This order applies to the publication or disclosure of information throughout Australia.

3. The notice of motion was supported by an affidavit of the defendant’s solicitor, Bridget Kennedy affirmed 20 June 2019.

4. At the hearing of the notice of motion on 26 June, I was informed that an earlier notice of motion filed 3 June 2019 by the defendant seeking similar orders had been heard and dismissed by Bellew J, the judge administering the High Risk Offenders List. Neither party had available to them Bellew J’s reasons and, at the time I heard the motion, Bellew J was on leave. Accordingly, I made interim orders pursuant to s 10 of the Court Suppression and Non-publication Orders Act 2010 (NSW) in the terms sought by the defendant’s notice of motion, pending the availability of Bellew J’s reasons.

5. Subsequently, and after Bellew J’s reasons became available, the present notice of motion was argued before me on 11 July 2019. During the course of that argument I was informed by Ms Sullivan of counsel for the State that Lonergan J had considered a similar application in the matter of State of New South Wales v Wilmot (Supreme Court (NSW), 21 June 2019, unrep). Those reasons were not publicly available because they needed to be redacted before they could be finalised and published.

6. In the meantime, on 2 July 2019 I had given judgment on the application for an interim supervision order and had dismissed the State’s summons: State of New South Wales v Williamson [2019] NSWSC 812.

7. On 11 July 2019 I reserved my decision on the defendant’s notice of motion, but I informed the parties that if and when I was able to obtain a copy of the reasons of Lonergan J in State of New South Wales v Wilmot, copies would be forwarded to the parties with an invitation to lodge a further written submission.

8. In fact, Lonergan J provided me not only with a copy of her judgment in State of New South Wales v Wilmot but also a further similar decision in State of New South Wales v XY (Supreme Court (NSW), 17 June 2019, unrep). Both of those judgments were made available to the parties. The State informed my Associate that it did not intend to make any further submissions. However, the solicitors for the defendant sought leave to file and read further evidence on the motion. The State opposed that course. Accordingly, I relisted the matter to enable the defendant to make such an application.

9. When the matter was relisted Mr Stratton SC appeared for the defendant. He sought to read an affidavit of his instructing solicitor, Bridget Kennedy, affirmed 17 July 2019. Ms Kennedy gave evidence in that affidavit of an article on the website of the Daily Telegraph that had recently come to her attention. It was an article concerning high risk offenders and their ongoing supervision.

10. There was a video attached to the article in which a journalist interviews an ESO officer about the day to day activities of ESO officers. Both the video and the article contain photographs of people subject to ESOs in or outside their homes. Their faces are not visible, but Ms Kennedy says that in at least one instance neighbours would be able to identify the offender. The thrust of the article is that the people who are the subject of ESOs are living in the community anonymously without the knowledge of their neighbours.

11. Within the article there is an interactive item entitled “Eye Spy” which lists seven people who are subject to ESOs, including one by a pseudonym. Their names are active, so that if the reader clicks on their name further information is revealed about them including their age and/or place and year of birth, details of their offending and sentence, duration and commencement of the order, some of the conditions of the order, and in some cases a photograph of the offender.

12. The tone and intent of the article may be judged from the various descriptions of the offenders as “monsters”, “notorious child rapist”, “paedophiles, terrorists, killers and dangerous criminals”, and “the rapist”.

13. The State opposed this affidavit being read and the re-opening of the application, on the basis that the material in the affidavit was irrelevant to the position of the defendant.

14. The earlier evidence contained in Ms Kennedy’s affidavit of 20 June 2019 was directed to what could be found about the defendant by making online searches through Google and Facebook. A search under the name of the defendant, and using the suburb with which he had been connected in relation to the offending, returned in excess of 80,000 search results. Searches through Facebook disclosed at least one open forum concerning the defendant’s offending, as well as two public petitions, one by a local newspaper, recommending that the defendant never be released from prison or be supervised for the remainder of his life. Some of the comments posted online contained matters which might be thought to threaten the safety of the defendant.

15. The affidavit also identified matters in the OIMS case notes from Corrective Services that dealt with the defendant’s reactions to media exposure. These matters dealt with such things as his employment and the pro-social groups with whom he was mixing, and how the defendant was likely to be affected if his employer and those groups came to know the extent of his past offending.

16. The affidavit concluded by saying this:

There is a concern that Mr Williamson’s progress in terms of his reintegration into the community would be jeopardised by publications linking the current proceedings and his history, given [his notoriety] both at the time, upon his release to parole and at the time that the last order was made in 2014.

17. Section 8 of the Court Suppression and Non-publication Orders Act relevantly provides:

8 Grounds for making an order

(1) A court may make a suppression order or non-publication order on one or more of the following grounds:

(a) the order is necessary to prevent prejudice to the proper administration of justice,

…

(c) the order is necessary to protect the safety of any person,

…

(e) it is otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice.

18. When the present notice of motion was first argued, in part, on 26 June 2019, Mr Stratton SC submitted that the proposed orders should be made in reliance on paragraphs (a) and (c) of s 8(1) of the Act. I expressed some doubt about the applicability of paragraph (a), and Mr Stratton SC amended his approach to suggest reliance only on paragraph (c).

19. When the matter came to be further argued on 11 July 2019, Ms Hennessy of counsel, who then appeared for the defendant, argued that the orders could be made on the basis of paragraphs (c) and (e).

20. It became clear during the course of argument on that occasion that the most recent evidence of any threats to the defendant’s safety, emerging from online postings and the petitions, was in or about 2012. Although submitting that if the defendant’s name was again made public there would be a surge of media interest which might stir up similar reactions as were expressed in 2012, Ms Hennessy principally based her claim for the orders in reliance on paragraph (e). The argument was based on the detrimental effect that unwanted media attention would have on the defendant’s reintegration into the community without the assistance of the restrictions and the supervision that had been entailed in the ESO made in 2014.

21. Ms Hennessy submitted that there was a public interest in the rehabilitation of the defendant, and that the public interest outweighed the public interest in open justice. She submitted that, despite the two earlier judgments of Button J and Johnson J, the orders would be of utility. She submitted that up until the present time the defendant has been on the ESO, impliedly suggesting that the ESO was protective of him from media and public interest. Many people, she submitted, had wanted him supervised for life, and the fact that he would now be unsupervised was likely to attract the public’s attention.

22. The further evidence sought to be relied upon from Ms Kennedy’s affidavit of 17 July 2019 was intended to supplement the evidence concerning the safety of the defendant, by pointing to an ongoing risk exemplified by the article on the Daily Telegraph’s website.

23. In my opinion, the material in the affidavit was marginally relevant, and I indicated at the further hearing on 22 July 2019 that I was not prepared to exclude it.

24. At the hearing on 22 July, Mr Stratton SC submitted that the further material from the Daily Telegraph online article had a tendency to invade the privacy of persons in the position of the defendant, and in that way exposed them to harm. He submitted that it was relevant to both paragraphs (c) and (e) of s 8(1) of the Act.

25. Mr Stratton submitted, in the alternative, that if the Court was not minded to make a general suppression or non-publication order, an order should be made to prevent disclosure of the defendant’s address or the identity of his employer and the employer’s address. Mr Stratton relied on three cases where this limited form of order had been made: State of New South Wales v Delaporte [2014] NSWSC 1165; State of New South Wales v Burns [2014] NSWSC 1014 and The State of NSW v Colin John Fisk [2009] NSWSC 778.

26. The State opposed a continuation of the interim orders and the making of any permanent orders. The State pointed to the high threshold of demonstrating that the making of an order was “necessary”. The State submitted that any order would lack utility because of what was already in the public domain, especially the unrestricted judgments of Button J and Johnson J referred to in my earlier judgment. In relation to the more limited alternative order, the State suggested that the appropriate course was to redact any reference in the court file to the addresses of the defendant and his employer, and to his employer’s identity.

27. The grounds for the making on an order on any basis in s 8 of the Act all require that the order is necessary. It is now clear from a large number of authorities that the word “necessary” is a strong word which should not be given a narrow construction, and is one which imposes a high threshold before an order can be made: Prothonotary of the Supreme Court of New South Wales v Dowling (No 6) [2018] NSWSC 1715 at [16]; Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125 at [8]; Darren Brown (a pseudonym) v R (No 2) [2019] NSWCCA 69 at [26].

28. In R v Qaumi (No 15) (Non-publication order) [2016] NSWSC 318, Hamill J said:

[34]   The Chief Justice and McColl JA said in Reinhart v Welker :

“Significantly, an order is not ‘necessary’ if it appears to the court ‘to be convenient, reasonable or sensible, or to serve some notion of the public interest, still less that, as the result of some “balancing exercise”, the order appears to have one or more of those characteristics’: Hogan v Australian Crime Commission (at [31]).”

[35]   That passage is an important one and clearly distinguishes between a finding that an order is “convenient, reasonable or sensible” from a finding that an order is necessary. Further, it makes it clear, as was stressed by counsel for the Intervenors, that the decision to order non-publication or suppression of material is not to be undertaken by engaging in some form of balancing exercise in which the various interests are placed on either side of the scales. Rather, it is a matter of considering all of the evidence and interests and determining whether it is truly “necessary” to make the orders sought or some variation of those orders.

29. I am not satisfied that there is any evidence to justify the making of an order under paragraph (c). Whilst I accept that the explanation for the material which emerged online in about 2012 was triggered by the imminent release of the defendant from prison, and that there has been little to excite public attention in the defendant from that time until now, except perhaps at the time of the making of the first ESO in 2014, there is simply no evidence to justify a conclusion that the defendant’s safety is imperilled unless a non-publication or suppression order is made.

30. I do not consider that the further evidence of the material on the Daily Telegraph website is evidence which touches the safety of the defendant. That material is to be contrasted, in that regard, with the online postings and the petitions in 2012 and thereabouts. The evidence is of more relevance to the issue referred to in s 8(1)(e).

31. In terms of s 8(1)(e), the concerns put forward on behalf of the defendant are legitimate concerns. It would be unfortunate indeed if unwanted media attention on the defendant impeded his ongoing rehabilitation and reintegration into the community. It seems to me, self-evidently, that it is in the public interest for the defendant to be able to live in the community in such a manner that members of the public are no longer at the risk they were exposed to at the time of the defendant’s offending. Unwanted public and media attention which might have the effect of isolating the defendant from the small social groups within which he now moves and works would neither be in the public interest nor would assist his rehabilitation, which is one of the objects in s 3 of the Crimes (High Risk Offenders) Act.

32. However, I do not consider that the defendant shows that a general non-publication order is necessary in the public interest. It may, as was said in Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403, be convenient, reasonable or sensible in all the circumstances, but that is not the test. Nor do I consider that the public interest in this defendant’s rehabilitation and reintegration into the community significantly outweighs the public interest in open justice.

33. There is the further matter of the utility of any orders. As the Court of Appeal made clear in Darren Brown at [27], an important matter is whether the orders sought will be effective or lack utility.

34. In State of NSW v Kay [2017] NSWSC 274, where similar orders were sought in the case of a high risk offender, Harrison J said:

[30]   In the present case, the defendant asks for relief that fails to take account of the reality that his name and picture are now, and have for some considerable period, been open to public scrutiny. The judgments of this Court and of the Court of Appeal are unexpurgated. It is possible to trace publicly available articles from as early as February 1997 up to the present time that contain the defendant’s name and images. The very information that the defendant seeks to restrict has been in the public domain for some time. It has not been suggested by the defendant how the order that is sought can effectively accommodate these historical realities. It is not without some significance, perhaps reflecting the difficulties of doing so, that no application has been made to remove the already available allegedly offending material from scrutiny. In my opinion, the orders that are sought would not be effective.

[31]   I also bear in mind that the primary object of the Crimes (High Risk Offenders) Act is to provide for the extended supervision and continuing detention of high risk sex offenders and high risk violent offenders so as to ensure the safety and protection of the community. The object of encouraging such offenders to undertake rehabilitation is described less emphatically as merely another object of the Act. Although it was not in terms argued before me, it does seem fairly arguable that the primary object of the Crimes (High Risk Offenders) Act is more effectively advanced by the coincidental promotion of the principle of open justice than by its restriction. Indeed, inherent in that latter principle will be the notion that the public ought in all but the most exceptional cases be provided with sufficient information, in this case about a high risk sex offender, in order better to be able to take such steps in their own lives as may appear to be necessary to protect themselves. It would only be in cases where an applicant, such as the defendant in this case, were able to demonstrate by cogent evidence that people with knowledge of him were likely to resort to violence or that violence was imminent, not merely that he was fearful of such things, that an order suppressing his details could properly be made. This is not such a case.

35. In the present case the judgments of Button J in State of New South Wales v Williamson [2014] NSWSC 519 and of Johnson J in State of New South Wales v Williamson [2014] NSWSC 939 have both been in the public domain since those judgments were delivered. Of necessity, I made reference to them in my judgment dismissing the State’s summons. In relation to the utility of an order, I cannot see in the circumstances that any order which now endeavours to limit the availability of general information about the defendant will, in all the circumstances, be effective.

36. Furthermore, the evidence of Ms Kennedy in her June affidavit tends only to reinforce the fact that at least the negative aspects of the matters are well within the public domain. Indeed, it seems to me that there is some public interest in the evidence of the defendant’s rehabilitation, as set out in my judgment, being available so that a fair reporting of the defendant’s changed circumstances can be available to balance the earlier negative material.

37. As I noted in my judgment, the defendant has led a blameless life for the past seven years. True it is that he has been on parole and under an ESO during that time, but the recent expert evidence available to me, including from an experienced forensic psychologist, suggested a very considerable reduction in the defendant’s risk of reoffending. The CHRO Act is not intended to guard against all risks, but only against unacceptable risks of committing a serious offence where the court is satisfied to a high degree of probability.

38. It is to be hoped that any reporting concerning the defendant will provide a balanced view of his rehabilitation to this point. It is certainly in the public interest for that to occur, and that public interest will be impeded by restricting the availability of my earlier judgment and other information to similar effect.

39. That leaves, however, the more limited order sought by the defendant, to protect his address and the identity and address of his employer. The situation in each of the cases relied upon by Mr Stratton was somewhat different from the present matter. In each case, either an ISO or an ESO was made by the judge. In Delaporte and Fisk the orders were made by consent, and in Fisk the defendant was also on a witness protection program.

40. Nevertheless, what was said in Burns and Fisk concerning the promotion of the defendant’s rehabilitation is instructive. In Burns, Beech-Jones J noted that a non-publication order concerning the location of the defendant’s work and residence was sought. His Honour said at [69]:

Having regard to the potential for reprisals and the evidence concerning the need to promote Mr Burns' rehabilitation, I am satisfied that the making of a non-publication order in respect of material identifying the whereabouts of Mr Burns is justified.

41. In Fisk, Howie J said at [214] that the parties had agreed that if an ESO was made he should also make an order preventing (inter alia) the publication of information concerning the current and future residences of the defendant and the name of the person providing the accommodation. His Honour went on to say:

[215]   I recognise the very limited use that the Court should make of its power to prevent publication of material because of the fundamental requirement of our system of justice that hearings be open and evidence be available for circulation to the public generally. However, there is no doubt that in a truly exceptional case and where “it is really necessary to secure the proper administration of justice in the proceedings before it” the Court can make such an order: see John Fairfax Publications v District Court of NSW (2004) 61 NSWLR 344. The order should be clear in its terms and do no more than is necessary to achieve the due administration of justice.

[216]   These proceedings were brought by the State for the purpose of placing the defendant’s liberty in the community under conditions including where he could reside. The purpose of these proceedings according to the Act under which they were brought is both the protection of the public and the rehabilitation of the offender. Of course these two purposes are not inconsistent. One means of protecting the public from an individual is to rehabilitate him.

[217]   In order to achieve the rehabilitation of the defendant it is necessary in my view to restrict the persons who know where he is to reside. While I understand that members of the public would reasonably have an interest in knowing that information in what they consider to be the protection of adolescent males in the community generally or certain individuals in particular, the protection of those persons is placed in the hands of officers of the Department and the police and secured by restrictions upon the defendant’s conduct including restrictions upon where he might go in the area in which he is residing. That purpose of the Act is adequately maintained by the restrictions imposed upon the defendant including his place of residence.

[218]   In my opinion the order made by the Court as sought by the State would be frustrated in its objective if the public at large were made aware of the residence of the defendant or any material that might disclose that location. The owner of the property where the defendant seeks to reside, once he has been permitted to do so, has indicated in uncontested evidence that, were the residence revealed publicly and hence her sense of security and privacy be unreasonably invaded, she would be unable to provide the accommodation to the defendant. In my opinion the provision of that accommodation on the evidence presently before me is an integral part of the eventual rehabilitation of the defendant. Clearly the place where the defendant will reside in the short term under the management of the Department should not be disclosed otherwise the Department may be unable to provide the defendant with the accommodation and resources that it believes essential for the proper management and supervision of the defendant and hence the reason for the making of the order.

42. The significance of this for the present matter is that although, and to some extent because, the defendant is no longer on ESO, his need at least temporarily to adjust to living in the community without the assistance with which he has hitherto been provided, would be significantly impaired if he were being constantly scrutinised by the media or the public at his home, and if his employment were to be impaired by unwanted attention. In the latter case, the defendant’s employer, who has been extremely supportive of the him, may feel that his own interests are being sufficiently compromised so that he cannot continue to support the defendant. The defendant’s rehabilitation and his ability to refrain from re-offending would be jeopardised.

43. Any such limited order would not simply be convenient, reasonable or sensible, although it would be all of those things. I consider, in addition, that it would be necessary in the public interest. Because the order is of such a limited scope, it infringes any interest in open justice only to the smallest extent. The defendant will have to live and cope with the disclosure of the matters in my earlier judgment, the judgments of Button J and Johnson J and other similar material. The limited order will merely be of assistance in protecting him from direct harassment and from his employment and pro-social relationships being put at risk. It will be for a limited period, so that in the absence of a further application by the defendant it will thereafter lapse. There is no futility to the order because the protected information has not yet been disclosed.

44. I make the following orders:

1. I order pursuant to ss 7 and 8(1)(e) of the Court Suppression and Non-publication Orders Act 2010 (NSW) that there be no publication of the (a) present or future residence of the defendant, (b) the identity or the places of business of the defendant’s employer.

2.   The non-publication order does not apply to any person with responsibility for the defendant under the Child Protection (Offenders Registration) Act 2000 (NSW).

3.   The non-publication order is to remain in force for 12 months from the date hereof.

4.   The non-publication order is to apply throughout the Commonwealth of Australia.

5.   The interim orders made by me on 26 June and extended on 2 July and 11 July 2019 are vacated.

**********

Amendments

25 July 2019 - WT changed to Williamson in paragraphs 6, 16 and "Cases Cited" on the title page.

Decision last updated: 25 July 2019